Rigel C. Oliveri, Between a Rock and a Hard Place: Landlords, Latinos, Anti-illegal Immigrant Ordinances, and Housing Discrimination, Vanderbilt Law Review 55-125, 55-59, 124-125 (January, 2009) (288 footnotes omitted)
Asking landlords to enforce immigration laws makes about as much sense as requiring grocers to demand a green card before selling a gallon of milk. --Editorial, Chi. Trib., Oct. 16, 2006
In recent years, few topics have been as controversial and polarizing as illegal immigration. Federal efforts at policing the border between the United States and Mexico are widely regarded as ineffectual, and efforts to locate and deport unauthorized immigrants have scarcely made a dent in the population of approximately 12 million estimated to be living in the United States. In the wake of these failures, attempts at local and private enforcement of immigration laws have proliferated. Many local governments have recently sought to take measures into their own hands by passing anti-illegal immigrant ("AII") ordinances. These ordinances typically contain a combination of provisions: they make English the "official language" of the municipality, eliminate gathering places for day laborers, penalize employers for hiring unauthorized immigrants, restrict unauthorized immigrants' access to public benefits, and prevent unauthorized immigrants from renting housing.
Attempts by subnational governments to pass such measures have received much attention in the scholarly literature, primarily because of the questions they raise about the appropriate allocation of immigration enforcement authority between federal, state, and local governments. Most of the treatment, however, fails to engage in a substantive analysis of the provisions themselves; to the extent it does, it tends to lump the individual provisions of the AII measures together. Nonetheless, the various areas implicated by AII ordinances--housing, employment, public assembly, public benefits, and municipal administration--operate within different legal frameworks and raise different sets of concerns.
This Article focuses on AII provisions targeted at private rental housing, which typically sanction landlords who rent to unauthorized immigrants and may also require that all prospective tenants have their immigration status verified prior to entering into a residential lease. My analysis reveals that it is difficult (if not impossible) for landlords to verify the immigration status of every potential tenant they encounter. They are instead likely to resort to shortcuts, such as discriminating based on accent, surname, appearance, or other ethnic markers. As a result, I argue that these restrictions: (1) will cause landlords to violate the federal Fair Housing Act, which prohibits discrimination on the basis of national origin and (2) will lead to discrimination against all ethnic minority groups whose members look or sound "foreign," regardless of immigration or citizenship status. Although fair housing laws frequently pit landlords against tenants, in this situation the interests of the two groups are aligned: national origin minorities do not wish to be discriminated against, and landlords do not wish to be put in the untenable position of attempting to comply with AII ordinances that put them at risk of violating the Fair Housing Act.
In addition to the likelihood that AII ordinances will result in violations of federal fair housing law, there are also significant public policy arguments against immigration-related housing restrictions. These rights-oriented and practical arguments stem from the importance of housing, the nature of the landlord-tenant relationship, the ways in which the results of AII housing measures will conflict with the measures' stated goals, and the unique harms that housing discrimination creates.
Because of these problems, I conclude that federal intervention is necessary. To protect national origin minorities and other legally present noncitizens from housing discrimination, and to keep landlords in compliance with fair housing law, Congress must act to prevent municipalities from enacting and enforcing such restrictions. Further, given the policy problems inherent in immigration-related housing restrictions, Congress itself must resist pressure to enact them into federal law.
But this is not enough. Historic and current levels of housing discrimination--both private and municipal--against national origin minorities and immigrants indicate that these groups are already in need of greater protection. Yet the law contains significant gaps in coverage that can prevent these groups from obtaining equal access to housing. Both alienage (whether a person is a citizen of the United States) and legal status (whether a person is legally present in the United States, and, if so, under what conditions) remain permissible bases for discrimination under the Fair Housing Act. As long as this is the case, landlords may attempt to take immigration enforcement into their own hands by refusing to rent to people who they believe to be unauthorized immigrants, or whose legal status they deem insufficient. This will invariably lead to continued discrimination against "foreign-seeming" national origin minorities (regardless of their citizenship) and legally present noncitizens. Thus, the Fair Housing Act should be amended to contain explicit protection for both alienage and legal status. Put another way, not only should private landlords not be forced to consider these factors when renting housing, they should in fact be prevented from taking them into account.
Part I discusses the AII ordinances generally in terms of their history, housing contents, and current status. Part II analyzes the probable effects of the housing provisions and how these outcomes violate the Fair Housing Act. Part III addresses additional public policy arguments against AII housing restrictions. Part IV offers suggestions for how the law can address the situation, both in terms of counteracting the AII ordinances and in terms of more proactive reforms to protect national origin minorities who are citizens and legally present noncitizens from housing discrimination.
. . .
The combination of AII ordinances, discrimination slippage, congressional inaction on comprehensive immigration reform, and the gaps in fair housing laws has left us in an unstable position with respect to housing our nation's immigrants and national origin minorities. Something has to give. Unfortunately, the Hazleton opinion merely defers the reckoning to another time or another authority.
In order to protect national origin minorities who are citizens and legally present noncitizens from discrimination, it is not enough for the federal government to bar localities from passing AII housing ordinances and to refuse to act itself. Such discrimination already occurs to a significant degree, and it is only encouraged by the contentious nature of the immigration debate. Discrimination slippage, and the fact that both alienage and legal status discrimination are permissible under the Fair Housing Act, already create conditions in which people who have every right to be in this country are likely to be discriminated against in housing.
As a result, Congress must create affirmative protections in the Fair Housing Act for both alienage and legal status. However, the experience of California notwithstanding, a blanket prohibition against taking legal status into consideration in housing would be a hard sell as a matter of federal law. Even the most pro-immigrant politicians tend to draw the line at illegal immigrants, and there would be enormous political backlash among some constituencies if such a law did pass. Given the intense emotions surrounding the issue of illegal immigration, it is difficult to imagine the general population accepting the concept of illegal immigrants being given any type of "special protection" in the law, particularly if this law is imposed from Washington.
It is important, however, to underscore that these (somewhat radical) reforms I propose are necessary to combat discrimination against American citizens who are national origin minorities and legally present noncitizens-groups of people whom our laws recognize as having every right to be here. That my proposals will also have the effect of making life slightly easier for undocumented immigrants is a collateral consequence that, I submit, is worth accepting when it comes to an area as fundamental as access to housing.
Last Updated: Monday, April 09, 2012 You are visitor number Since March 1, 2009